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DIVORCE YOUR SPOUSE INSTEAD OF "KILLING" HER
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I came to the U.S. in 1993, and have not had any
further contact with my spouse. I fell in love with an American
citizen, and we would like to get married.
I know that in order to marry my American fianc¯e,
I need to be single. But I don't want to go through the time and
trouble of divorcing my existing spouse. Would it be O.K. for
my relatives in the Philippines to obtain for me a fake "death
certificate", making me a widower, so I can marry my fianc¯e?
I also heard that if a person has not seen or spoken with his/her
spouse for more than four years, the law considers that missing
spouse as being "dead". Since I have not spoken to my
spouse for over four years, am I now free to marry my American
citizen fianc¯e?
Very truly yours,
T.M.
Dear T.M.:
Under both Philippine and U.S. law, before you can
marry a second person, your first marriage must be legally
terminated, such as through annulment, or actual death of the
first spouse (or, if a person is in the U.S., by divorce, which
is allowed and recognized in the U.S.). If you do not legally
terminate your first marriage by annulment (or divorce in the
U.S.), then the second marriage would be considered "bigamous"
and "void from the beginning". Therefore, if you marry
your American citizen fianc¯e without legally terminating your
marriage to your first spouse, your marriage to the American citizen
will be considered void. If your American citizen "spouse"
petitions you, and the INS discovers that your first marriage
is still in force, the INS will deny the petition, and possibly
start deportation/removal proceedings against you.
In your case, since your first wife is still alive,
and your first marriage has not been legally terminated, you are
not eligible to marry anybody, including your American
citizen fianc¯e. The Immigration and Naturalization Service, as
well as the Embassy, are very wise to people trying to "get
away with" or "get around" divorcing their first
spouse, by pretending that the spouse died. The INS in the U.S.
routinely conducts overseas investigations to verify documents
provided by applicants, and INS searches official records, to
make sure that the death certificate you gave them is real. If
they find that there is no death certificate on file, they will
catch your fraud, and then you will be in big trouble.
Recently, a couple came to my office for consultation.
She was an American citizen, and he was a TNT. They wanted
to get married, and she would petition him. The man stated that
he was a widower, and even presented a death certificate to me.
He swore to me that he truly was a widower, and the death certificate
was real. During the consultation, when I mentioned to him that
the INS will check and verify his documents, he finally changed
his story, and admitted that his first wife was still very much
alive, but he just wanted to "save time and money" by
"faking" her death.
My advice to him, and to any other person who is
thinking of becoming widows or widowers with fake death certificates,
is to just divorce your first spouse legally. In California, it
only takes approximately six months to conclude a valid, legal
divorce. Then, you will be free to marry a second spouse. If you
try to play tricks and games with the INS, you risk a lifetime
of uncertainty, with the fear in the back of your mind that your
first spouse or friends, relatives, etc., may later become mad
or jealous and "report" you to the INS about your double
marriages.
Although divorce is not recognized in the Philippines,
divorce is allowed in the U.S., such that if you are in the U.S.,
and get divorced, INS will recognize the divorce as a valid, legal
termination of your first marriage, thereby enabling you to get
married in the U.S., and your spouse can then petition you in
the U.S.
It is also a myth and misconception that a spouse
is somehow "presumed dead" if a person lost contact
with that spouse for over four years. In order for you to rely
on the "presumption of death", you must go to court,
have a court hearing, present evidence and testimony about efforts
to track down or locate the supposed "missing spouse".
The spouse's relatives may be called, to verify that the spouse
is truly missing. It is only after the conclusion of a court proceeding,
and a "court order", that a person may rely on that
"presumption of death".
If your spouse is alive, and you have been maintaining
contact with that person, again my advice is to do it right, do
it legal, and just divorce, instead of becoming a widow or widower,
using a fake death certificate.
"Doing it right" is all the more important,
especially with Section 245(i). Remember, in order to preserve
your Section 245(i) eligibility, the petition must, among other
things, be "approvable when filed". If you are
being petitioned by a spouse on the basis of a bigamous marriage
(because you did not bother to terminate your first marriage),
then, such a petition would not be "approvable when
filed". A petition cannot be approved on the basis of a bigamous
marriage.
That is why if you have any questions or concerns
about your case, and whether or not it is "approvable when
filed", you should seek the advice of a reputable attorney
(and, of course, be truthful with that attorney concerning the
facts of your case). You have to make sure your case was "approvable
when filed".
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